The Supreme Court of India, on September 13, 2024, granted bail to Delhi Chief Minister Arvind Kejriwal in the Central Bureau of Investigation's case arising from the now-scrapped Delhi excise policy of 2021-22. A Bench comprising Justice Surya Kant and Justice Ujjal Bhuyan reaffirmed the foundational principle that bail is the rule and jail is the exception, and introduced a "need and necessity" test for evaluating the validity of continued pre-trial detention.
Background
The CBI had arrested Kejriwal in connection with its investigation into alleged irregularities in the formulation and implementation of the Delhi government's excise policy for the year 2021-22. The policy was subsequently withdrawn following allegations of corruption in the grant of liquor licences. The CBI's case was registered under provisions of the Prevention of Corruption Act, 1988.
Kejriwal had been in custody for an extended period following separate arrests by the Enforcement Directorate under the Prevention of Money Laundering Act and subsequently by the CBI under the Prevention of Corruption Act. The Supreme Court had earlier granted him interim bail in a related proceeding. The present application before the Court concerned regular bail in the CBI case, with the central contention being that the prolonged incarceration without a proximate trial timeline violated his fundamental rights.
Key Holdings
The Supreme Court addressed several principles governing bail in corruption cases involving public officials:
Bail as the rule reaffirmed: The Court reiterated that the presumption of innocence mandates that pre-trial detention remain the exception. The burden lies on the prosecution to demonstrate compelling reasons for continued incarceration, not on the accused to justify release.
Need and necessity test: The Bench articulated a "need and necessity" framework for evaluating continued detention, requiring the prosecution to demonstrate that incarceration serves a specific investigative or trial-related purpose that cannot be achieved through conditions attached to bail.
Prolonged incarceration: The Court observed that where an accused has been in custody for an extended period and the trial is not likely to conclude in the near future, continued detention becomes punitive rather than preventive, offending the constitutional guarantee under Article 21.
Bail conditions: While granting bail, the Court imposed conditions including surrender of passport, prohibition on leaving the country without court permission, and a requirement to cooperate with the ongoing investigation. The accused was directed not to make any public comment on the merits of the case.
Implications for Practitioners
The "need and necessity" test articulated in this judgment provides criminal defence practitioners with a structured analytical framework for bail applications in high-profile corruption cases. Rather than engaging in an open-ended assessment of the gravity of the offence and the strength of the evidence, this test redirects the inquiry towards the practical justification for continued custody.
Practitioners representing accused persons in Prevention of Corruption Act cases should note the Court's emphasis on the temporal dimension of pre-trial detention. Where investigation is substantially complete and the charge sheet has been filed, arguments for continued custody become progressively weaker, and this judgment strengthens the basis for release.
For prosecution agencies, the judgment signals that the filing of a charge sheet is not sufficient to justify indefinite pre-trial detention. Prosecutors must be prepared to articulate specific, ongoing investigative needs or concrete flight and tampering risks that warrant continued incarceration. General assertions regarding the seriousness of the offence or the position held by the accused are unlikely to satisfy the Court's threshold after this ruling.